•There exist some restrictions to political expression contained in Kenyan laws which include insult laws such as ‘undermining the authority of a public officer’ and ‘improper use of telecommunication systems’, hate speech, defamation as well as Film and Stage Play Act CAP222.
•Such laws have been used severally to punish creatives who criticise the government or expose government failures and even corrupt public officers that subjects them to embarrassment.
The enactment of a Bill of Rights in the 2010 constitution represents Kenya’s strong commitment to fundamental rights and fundamental freedom and a proof of being a democratic country governed by the rule of law with a genuine political transformation.
However, continued retention of laws that were there before the new Constitution and enactment of new ones that unjustifiably restrict freedom of expression is a stark contradiction to this commitment.
Numerous legislations have been enacted to reconfigure the law to the dictates of the Constitution but, nevertheless, as far as the laws limiting freedom of expression are concerned, not much reforms have taken place.
In the year 2018, a law, Computer Misuse and Cybercrimes Act, 2018, was enacted to penalise the publication of false information with up to 10 years in prison violating user rights.
This law threatens to further restrict online freedom of expression as it imposes penalties of up to 10 years in prison for the publication of "false" or "fictitious" information that results in "panic" or is "likely to discredit the reputation of a person.
In June, 2018, the Bloggers Association of Kenya (BAKE) successfully appealed 26 problematic provisions of the law, which were subsequently suspended until the court could hear the case.
A High Court judge ruled in October, 2018, that the provisions would remain suspended until November, despite the government's efforts to seek a judicial review of the ruling, arguing that that the judiciary erred in its suspension.
Creatives have for many times been targeted and they face a hostile environment and increased intimidation by the government.
In one of her rulings on section 29 of the Kenya Communication and Information Act, Justice Mumbi Ngugi declared: “Section 29 of KICA that imposes a limitation on freedom of Expression in a vague, imprecise and undefined terms that go beyond the limitations under the Article 33(2) of the constitution”.
The freedom of expression can be through artistic creativity. Art stirs public discourse on various topics, provokes, entertains, persuades and dissuades at the same time.
While ruling in 2013 on the play Shackles of Doom by Cleophas Malala and propped by activist Okiya Okoiti Omutata’s in the case, Justice Majanja noted:
“Plays are a medium of expression of ideas which are sometimes subversive of accepted ideas. Plays may challenge long held beliefs and conventional wisdom. Artistic expression is not merely intended to gratify the soul. It also stirs our conscience so that we can reflect on the difficult questions of the day. The political and social history of our nation is replete with instances where plays were banned for being seditious or subversive. I am not convinced that Kenya is such a weak democracy whose foundation cannot withstand a play by high school students. I am also of the view that if our democracy is to flourish then it is students of today who must at an early age understand the meaning of freedom.”
From his ruling, one can draw several positive conclusions. First, that artistic creativity is anchored and protected in the Constitution.
Continued retention of laws that were there before the 2010 Constitution including some that date back to the colonial and Moi era and the enactment of new ones that undermine the Freedom of Expression undercuts the constitution’s foundational values of freedom, transparency, democracy, accountability, and respect for human rights.
Political culture in the country which actually determines political responses and priorities remain a continuing threat to Freedom of Expression in the new constitution dispensation.
Increased prosecution of government critics, creatives and social media enthusiasts is a proof that as far as laws remain in books, they pose an enduring threat to Freedom of Expression.
There exist some restrictions to political expression contained in Kenyan laws which include insult laws such as ‘undermining the authority of a public officer’ and ‘improper use of telecommunication systems’, hate speech, defamation as well as Film and Stage Play Act CAP222.
Such laws have been used severally to punish creatives who criticise the government or expose government failures and even corrupt public officers that subjects them to embarrassment.
In some instances, the public officers sue the citizens to claim hefty damages for what they term as defamation even when the defamatory allegations touch to matters of public interest.
Some of the laws enacted that limit the right to Freedom of Expression were enacted to deal with government critics.
A robust protection to Freedom of Artistic Expression in Kenya is indispensable to the success of the 2010 constitution dispensation. There is a need for a comprehensive review to assess the constitutional validity of all the laws that restrict or are a threat to Freedom of Expression.
The author is Communication and PR Specialist -Freedom of Expression Campaign.