BWIRE: Decriminalise press offences and related insult laws in Kenya

Media Council Deputy Chief Executive Officer Victor Bwire/FILE

The country maintains very weird and outdated laws that, in addition to making us incur unnecessary expenses on personal matters, continue to look archaic.

Even as we look for austerity measures in the public service, implementation of such laws in our statutes still leads to spending public resources on solving matters individually.

Case in point is the cost of implementing laws such as criminal defamation (which was already declared unconstitutional), sections of the Computer Misuse and Cybercrime Act and related insult provisions in the penal code, especially on the publication of false news.

With a very vibrant online community in Kenya and a working digital space complimented by huge youthful population that is increasingly involved in governance issues in the country, its going to be very costly to control such team, other than to invest in digital and media literacy, especially through the schooling curriculum, to ensure responsible use and consumption of media content.

Its disheartening that journalists and content creators, while commenting on matters of public interest via fair comment or truth continuing being harassed by security apparatus  because of criminal  defamation or for “insulting”  those in authority.

The African Commission on Human and Peoples’ Rights in 2010 adopted a resolution calling for criminal defamation laws to be abolished.

The establishment of bodies such as the Media Council of Kenya’s Complaint Commission are largely to decriminalise press freedom offences.

A journalist in Kitui writes an article over a public interest matter, the aggrieved calls in the police,  several officers from Kiambu County are mobilised and resourced, spend public resources to travel to Kitui County, arrest the guy and keep him on full board.

The state spends money on dealing on civil matters between two individuals. Misuse of position, violation of freedom of expression, police harassment of journalistic practice,  mockery of our bill of rights.

A Kenyan post something online, which someone in authority or with power hates, they invoke their positions, security officers are mobilised to chase down the guy, use all manner of resources and solve an individual problem, which would have been solved in a civil and less expensive manner.

Another guy, in their nursery alumni WhatsApp group uses a word/phrase which another member thinks is abusive, runs to court and have a huge fine imposed on the colleague.

There was a huge lesson, both human rights based and cost-benefit analysis, that criminal defamation and related insult laws are decriminalized—Kenyan courts have declared criminal defamation  and sections of the Computer Misuse and Cyber Crime Act ( Some sections and the Government appealed and won) unconstitutional because they violate freedom of expression and press freedom.

That freedom of expression is not an unlimited right is common sense and global practice, many of the laws in the country have given those exceptions, including on national security, public health, incitement to hate speech.

Protection of individual reputations is not among the exemptions, and even the Data Protection Act, journalists are given exemptions when writing on matters of public interest.

Fair comment on matters of public interest, truth, journalistic privileges (reporting court and from the floor of Parliament).

Criminal defamation and related 'insult' laws have been identified as among the most severe stumbling blocks to independent press and realisation to the right of freedom of expression and access to information in not only Kenya but the rest of Africa.

Indeed its out this concern that media practitioners, journalists and leading media support groups, meeting in Cape Town in 2007, come up with the Declaration of Table Mountain, calling for governments to decriminalise criminal defamation as a key step towards advancing a free press and freedom of expression in Africa.

According to a publication by the Thomson  Reuters Foundation,  there are two key distinctions between criminal and civil defamation: i) In the case of a criminal offence, the Office of Director of Public Prosecutions (ODPP) or a private prosecutor institutes the case and must establish the elements of the crime beyond reasonable doubt.

On the other hand, civil defamation is usually punished through damages. Although criminal defamation under section 194 of the Penal Code was declared unconstitutional, the publication of false information that is likely to harm the reputation of a person is a criminal offence under section 23 of the Computer Misuse and Cybercrimes Act (the CMCA). There is no specific definition of civil defamation under Kenyan law.

It’s a great step forward for the consideration to amend the 1930 Penal Code  especially on  sections 40 (1); 66; 66A; 67; 96; 194-200, Books and Newspaper Act, implement to the High Court’s 2017 ruling on the Unconstitutionality of criminal defamation in Kenya and relook at the Computer Misuse and Cybercrime Act.