High Court outlaws section of law taming online obsenity
By Kamau Muthoni
| August 1st 2019
The High Court yesterday outlawed a section of Communication Act which criminalises posting of lewd information online.
Justice Wilfrida Okwany found Section 84 (b) of the Kenya Information and Communication Act (KICA) to be too vague and against right to information.
According to the judge, the section was also crafted broadly such that anyone accused of committing a crime cannot effectively put up a defence.
“The impugned provides for an offence in such broad terms that the accused cannot answer. That law does not explain who and how it will be determined, who will be influenced by the matter,” ruled Justice Okwany.
According to the outlawed section, it is illegal to post information relating to lust and sex or encouraging or raising interest in sexual matters to others.
The punishment for such posts attracts two years imprisonment or a fine of Sh200,000 or both.
At the centre of the dispute is blogger Cyprian Nyakundi who was charged with publishing offensive information about Interior CS Fred Matiang’i on his Twitter account.
Mr Nyakundi was also charged with posting derogatory remarks against Nairobi Governor Mike Sonko, former Kenya Power MD Ken Tarus and Kirinyaga Governor Anne Waiguru.
Justice Okwany, however, found that leaders ought to take up criticism and act on issues raised by the citizens.
“The section is unconstitutional in so far as it suppresses freedom of expression and denies and accused right to fair trial through ambiguity. It is vague. The law creating a criminal offence must be clear. The section is retrogressive to an open, modern and democratic society,” he ruled.
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