“Sticks and stones may break my bones but words can never hurt me” is an old English saying that clearly our public figures do not believe in.
It was surely not the idea lying behind the recognition of the right to freedom of expression.
The recognition of rights has usually gained impetus as a form of resistance to state injustice. This is true of the right to express views, though it was not the very first right to have been recognised – rights to life and liberty probably gained recognition earlier.
In some quarters there has been criticism of the idea of “rights” as too individualistic.
Personally I think this is wrong – at a minimum, to recognise rights is a reflection of a sense of community, of recognising the importance of respect for people, at least if equality is also recognised.
When it comes to expression (and associated rights like association and assembly) this is more clearly so. No-one demands the right to talk to themselves, and one cannot assemble or associate with just oneself.
The main justification for freedom of expression has almost always been in terms of the social value of sharing ideas.
John Stuart Mill wrote in 1859, “the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it” [his punctuation].
Our constitution
The nature of this right as something going beyond the individual is recognised in the constitution. While Article 33 reads as though recognising the freedom of human beings to seek, receive or impart information or ideas, to freedom of artistic creativity and academic and scientific research freedom, Article 34 guarantees freedom of “electronic, print and all other types of media.”
This article is almost unique in recognising, perhaps creating, rights of commercial concerns (see also Article 41 on unions and employers’ organisations).
Generally I believe fundamental rights are of human individuals (Article 19(3)(1)) and based on human dignity and human potential as Article 19 says. (A topic for another day).
We go further than the French Declaration of the Rights of Man (1789) which said, “Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.” Our constitution recognises the rights of all not just citizens. Some constitutions have simply allowed “the law” to limit rights with no clear constraint.
On the other hand, modern thinking does not go as far as Mill who would have had no restrictions on expression. You might say we recognise that words may cause damage. Not because of emotional pain, but because of the possibility of incitement to violence, exclusion, mistreatment and hatred. In Africa that was very apparent in Rwanda in the 1994 genocide.
Think of each Article in the Bill of Rights as a sort of umbrella. It protects our rights to the topic of that Article – life, dignity, equality, to strike, etc. – and expression. But Article 33 is different from most because it shapes the umbrella to exclude hate speech, and advocacy of hatred from its protection.
Other law can limit Article 33 and 34 rights – but that law must satisfy the strict requirements of Article 24 about being for a legitimate purpose and limiting rights no more than strictly necessary. It does not leave as wide a possibility for restricting rights as “abuse of this liberty” in the French 1789 Declaration might do.
Improvements in our law
As long ago as 1997 the requirement to stage plays to be licenced was removed from the law. In the same year the offence of sedition was also abolished. This had included things like to bringing “hatred or contempt or excite disaffection against the person of the president … or the government”.
The offence of spreading false news was abolished (it remained in Uganda until 2023, and in 2019 the East African Court of Justice held that Tanzanian false news law conflicted with the East African Treaty).
In fact the courts have been more important than Parliament in freeing the law from restrictions on freedom of expression. Kenyan courts have declared unconstitutional the Penal Code provisions that created the criminal offences of subversion, defamation, making “alarming publications”, and publishing words “undermining the authority of a public officer”.
They did the same to a new section introduced in 2014 on material or images of dead or injured persons “likely to cause fear and alarm to the general public or disturb public peace” and information undermining “investigations or security operations” by the police or the KDF. In the same case they held new sections of the Prevention of Terrorism Act unconstitutional: a statement that is likely to be understood as encouraging or inducing another person to commit or prepare to commit terrorism and publishing or broadcasting certain material on terrorism without police approval.
Within the framework of freedom of expression the reasons have included unclear provisions, and the fact that the civil law should suffice in defamation – criminal law was not necessary.
Remaining problems
Freedom of expression still faces major limits in Kenya. Perhaps that’s not the right expression –“limits” suggests something clear. But challenges to expression are varied and not always predictable.
The two faults that courts have fingered recur in the law designed to deal with computer-based communication. Admittedly misinformation on social media is a significant problem. But the Computer Misuse and Cybercrimes Act, 2018, seems to provide some convenient tools, in sections 22 and 23, for state agencies to target those who criticise especially political figures. Neither is limited in its language to communications by computer or in cyberspace.
Both of these sections are badly drafted and unclear in various ways. Article 19 (the freedom of expression NGO) commented on the Act’s deficiencies in 2018.
Cases do not seem to have unpacked the sections. Must the state prove that the “information” is false – normally the prosecution must prove ingredients of offences? In different ways both sections are unclear about what mindset the publisher must have had. Serious offences should always have a requirement of bad intention or at least not caring about the consequences.
So far the reaction of courts to arguments of unconstitutionality of these sections has been disappointing. Yet people get arrested and charged for “false information”, including those four filmmakers last weekend.
Other challenges remain. Libel and slander – the civil (non-criminal) wrongs of defamation that are still part of our law - remain a grave threat to freedom of expression, especially because of the large damages that are often awarded.
Stage plays may not need a licence – though as we have seen a school production may be stopped. Let it be clear that children have rights, too. But no film can be shown to the public, including now on television, without approval of the Film Classification Board. In fact, no film can even be made in Kenya without prior approval of the script.
The Film and Stage Plays (still!) Act and its Regulations give no criteria for refusing to allow a film to be shown. In other words, it is a matter for the personal beliefs and prejudices of the board. An appeal is possible – to the personal prejudices of the Cabinet Secretary. Of course a case may then go to court – hopefully for the reasoned judgment and not the prejudices of the judge to come into play.
Worst of all, of course, is the extent to which the police – and the security services more widely - act against those who express opinions the powers that be do not like. For them law and constitution seem irrelevant.
