The criminal defamation laws, derived from section 194 of the penal code were yesterday declared unconstitutional by Justice John Mativo. This reaffirms that the Constitution is the supreme law of the land and that any law inconsistent with it is void to the extent of the inconsistency.
Where freedom of expression and the right to information are guaranteed in the Constitution, the criminal defamation law stifled those rights. Social media users and journalists, especially, have had to dance cautiously around the toes of the high and mighty in society while covering news the privileged did not wish to be in the public domain.
The fear of libel has often led journalists and media houses to be highly circumspect with truth even where it impacted negatively on society. Libel cases are often costly and time-consuming.
Several attempts have been made to stifle freedom of expression through legislation. Eldas MP Adan Keynan attempted to restrict press freedom by making it criminal for journalists to report anything negative about Parliament through the Parliamentary Powers and Privilege Bill 2014.
Indeed, with the Security Laws (Amendment) Bill 2014, the Government sought to trample on media freedom and the right to expression under the guise of national security. However, the High Court interpreted the law correctly and expunged the offensive sections following a case filed by the Opposition.
The Government, through Kenya Information and Communication Amendment Act (KICA) 2013 and Media Council of Kenya Act 2013 and through institutions like the Kenya Films Classification Board and the Communication Authority of Kenya, has attempted to take away from media houses and Kenyans their constitutional rights of expression and right to information.
Where before the Government leaned on the Judiciary, the principle of separation of powers seems to work well in instances where the excesses of the Executive are kept in check through the correct interpretation of the laws of the land. The High Court’s ruling is therefore commendable.