Author, Researcher, Peace & Conflict Professional

Awards

  • 2016/2017 apexart New York City (NYC) Fellow
  • 2014 Winner Burt Award for African Literature, Kenya Chapter
  • 2010 Penguin Prize for African Writing nominee
  • Ist Prize, Adult Fiction Category – NBDCK  Literary Awards, September 2008 Book Week

Image result for mumbi ngugi photosJ

Justice Mumbi Ngugi

Yesterday bloggers and freedom of expression in Kenya scored a major victory! A controversial section in the Kenya Information and Communications Act (KICA) which creates the offense of “misuse of a licensed telecommunication device,” was declared unlawful and unconstitutional by High Court Judge Mumbi Ngugi on 19 Tuesday 2016. She declared Section 29 of the said Act as unconstitutional saying it was too broad, vague and that it violated certain provisions of the constitution.

This Act has of late and in the past several months seen bloggers suffer arbitrary arrests, terrorised and detained on flimsy charges. The law makes it an offense to use any licensed telecommunication system such as a computer or cell phone to send a message or other matter that is grossly offensive.

Section 29(b) says ‘’A person who by means of a licensed telecommunications system 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 fifty thousand shillings, or imprisonment for a term not exceeding three months, or to both’’

In her ruling Justice Ngugi said that, The provisions of section 29 are so vague, broad and uncertain that individuals do not know the parameters within which their communication falls, and the provisions therefore offend against the rule requiring certainty in legislation that creates criminal offences.”

The Attorney General (AG) Githu Muigai and Director of Public Prosecutions (DPP) Keriako Tobiko, have argued severally that the law is intended to protect the reputation of others.

However, Justice Ngugi found that it does not meet the criteria set in Article 24 of the constitution which provides instances when rights can be limited.  She said the section which criminalises the “improper use of a licensed telecommunication system,” left too much to the interpretation of the trial court and wasn’t specific enough to guard against the unjust to freedom of prosecution of citizens.

“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 cannot stand,” Justice Ngugi said.

She also declared Section 29 of KICA unconstitutional on the grounds that it offends the Constitution by limiting the right to freedom of expression outside the parameters set out therein. She said, “It is my finding that the provisions of section 29 of the Kenya Information and Communication Act are also unconstitutional for violating Article 33 of the Constitution, and therefore null and void.”

Article 33(2) of the Constitution stipulates that the right of freedom of expression does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred.

She also concurred with the petitioner a Mr Geoffrey Andare that good law did not leave too much to the discretion of the trial court.  Mr Andare, a blogger and online user, was arrested in April, 2015 for posting a message on his social media page that reprimanded an agency official for allegedly exploiting others.

“Thus, the question arises: what amounts to a message that is ‘grossly offensive’, ‘indecent’ obscene’ or ‘menacing character’? Similarly, who determines which message causes ‘annoyance’, ‘inconvenience’, ‘needless ‘anxiety’?,” Justice Ngugi posed in her judgement.

The judge however maintained that the DPP has the constitutional powers to determine whether or not to proceed with prosecution against the petitioner, if the facts of the case disclose any other offence under any other law.

“I have left the matter to the determination of the DPP, the only rider being that he cannot proceed with the prosecution of the petitioner under the provisions of the Kenya Information and Communications Act,” Judge Ngugi said.

The petitioner through his lawyer had filed the petition arguing that Section 29 of  KICA was in violation of his constitutional right to freedom of expression and also because it was put in  broad and un-specifying terms.

 “It is my finding that the provisions of section 29 of the Kenya Information and Communication Act are also unconstitutional for violating Article 33 of the Constitution, and therefore null and void,” Justice Ngugi stated.

Justice Ngugi said her decision to declare Section 29 of the Communication Act unconstitutional was also justified by the fact that it would not leave a lacuna in law as the libel laws provide an avenue for redress should.

For the better part of the day the number one trending topic on Twitter Kenya was JUSTICE MUMBI NGUGI as Kenyans lauded her Solomonic ruling.

In another development later in the day, a reshuffle and deployment was announced in the Judiciary with Justice Ngugi being moved from the Constitutional and Human Rights Division in Nairobi county to the High Court in Kericho County. Kenyans again took to Twitter to question her deployment and Chief Justice (CJ) Willy Mutunga responded via his Twitter handle that she had requested the move and that these were normal deployments.  But the question remained why now? Why after this ruling? Some people expressed concern that Justice Ngugi had stepped on sensitive toes.

Nevertheless, this is a major victory to free speech and we thank God that this harmful tool that has been used to curtail civil liberties has been declared redundant and useless!

 

 

 

 

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