Courts are trying to wrestle with the Constitution and its impact on the law

Sometimes in Katiba Corner, we try to demystify the workings of the courts as they deal with constitutional cases.

This recent headline may have mystified readers: “It's not illegal to share obscene information online, judge rules”.

Justice Wilfrida Okwany's judgment is not yet available online, but the newspaper reports seem to make it fairly clear what her reasoning was.

CONSTITUTIONAL FREEDOMS

The Constitutional recognises basic freedoms that human beings have – because we are human. They include freedom of movement, freedom of religion, and freedom of expression (whether in writing, ordinary speech, online, through works of art, or in actions such as dance or demonstrations).

Freedom of expression (in Article 33) is particularly important. On the one hand, speech (in any form) can be very disturbing. Expression of beliefs, criticism of rulers, can start revolutions. Equally, improvement in society comes about because of expression of criticisms and suggestions. A society in which no-one could express their views would be a society doomed to stagnation.

But speech can do harm. The Constitution recognises this, saying that no-one can claim special protection for propaganda for war (propaganda means information, especially misleading information pushing towards a particular result). The same is true of hate speech, statements that are inciting violence, or are stirring up hatred (or perhaps dislike and distrust) of other people because of their race, religion, language etc.

This does not mean that no other law can limit our freedoms of speech. Statements that are fraudulent and cause someone else harm would be an example. But like any law that limits a constitutionally recognised freedom, that law must satisfy Article 24 of the Constitution.

That says that any limit on a right must be reasonable and justifiable in an open and democratic society. And this depends especially on the purpose of limiting the right, and whether that purpose, even if it is a good one, could be achieved some other way that would not limit rights so much.

The consequences of laws limiting rights may be serious — especially if they create crimes. Such a law would not only be trying to prevent people from exercising their right of expression, movement etc, but would affect rights in other ways. A person found guilty of a crime is likely to lose property (by being fined) or lose liberty (by being sent to prison).

Justice Okwany seems to have decided that the law about obscene electronic publications is not clear enough. The words used are first – being “lascivious or appealing to the prurient interest”. Both these tend to mean “having too much interest in sexual matters”. It is a pity that law makers director

You can perhaps begin to see the problems. First: who is to decide if someone has too much interest in sex?

In addition, the statement must have a tendency to “deprave and corrupt” anyone reading or hearing it. To deprave or corrupt a person means changing them, for the worse – making them behave in a way, or at least think in a way, they have not before. But some people might consider that this happens merely because people might think about sex more often. Ought the law perhaps to say that it is only wrong if the readers/listeners would be changed to accept sexual violence or sex with children, or some other form of exploitation?

WHAT IS THE BEST APPROACH?

Without reading the judgment it is hard to be sure exactly what the judge said. She seems to take a view that Kenyans should be treated as adults: she was also the judge who decided that the film Rafiki ought to be given a week of public exhibition so that it could qualify to be entered for the Oscars. I have some sympathy for that view.

But was she right in her decision in this case? The particular section of the law could be viewed as less broad and vague than she seems to have suggested. An excessive focus on sex is not enough, it requires also the tendency to “deprave and corrupt”. However, the current law does give magistrates (who decide most criminal cases) too much power and responsibility.

There are real problems of internet pornography. These include its wide availability, including to children whose ideas about sex, and attitudes towards women, may be affected by what they see online, without any responsible adult guidance. In the Sexual Offences Act there is a law against material that depicts sex with children, but what about material that might have bad influences on children?

Deciding that a law made by Parliament is invalid is a serious matter. Then the government and Parliament should produce a well thought through analysis of the problem and how to deal with it? But, realistically, do you trust them to do so? If not, is it good enough just to declare a section of the Act of Parliament unconstitutional? Ought the courts to be prepared to play a part in refining the law and ensuring that it complies with the Constitution? Issues that need to be decided include: is it enough that people find something distasteful? (Surely not.) And should only serious risks of encouraging harm to be crimes?

Judges are heavily dependent on the arguments by the parties to the case. The approach suggested would require a very thorough analysis by the parties, including the Director of Public Prosecutions and the Attorney General, and also from civil society.

Perhaps it is now too easy to hold laws unconstitutional. In South Africa, no such declaration is final until the Constitutional Court has confirmed it. In Kenya, a single High Court judge (or one from the Environment and Land Court or Employment and Labour Relations Court) can make the decision. The Constitution drafters probably intended that any case in which a law might be declared unconstitutional would be decided by at least three judges. But this is by no means always true. But perhaps it should be.

And people do not necessarily know that a law has been held unconstitutional. The invaluable Kenyan website, KenyaLaw, has added a section on law declared unconstitutional. This is helpful but incomplete and not as user-friendly as one would like. 

ANOTHER ANGLE

There are two other aspects to this case that are a bit troubling — and may have troubled the Judge. The charge concerned a publication about a specific person — namely Governor Anne Waiguru. As far as I have been able to read online, that statement included suggesting that the governor was “a prostitute”. Is calling someone a prostitute obscene? That cannot be so.

Surely the true issue is whether this is defamatory – damaging the person’s reputation. There is in the Penal Code a crime called “defamation”. But that provision has been held, at least twice by Justice Mativo, at least, to be unconstitutional. He has said that it is an unnecessary restriction on freedom of expression – a view held by many courts. Defamation should be dealt with by the civil law – where a person who complains seeks compensation - rather than at public expense in the criminal courts.

The DPP then said that criminal defamation cases would not be brought, at least until the issue about its constitutionality have been resolved by the Court of Appeal – which does not seem to have happened.

So now comes a case involving something about sex, and a Governor. The DPP cannot treat it as criminal defamation. So did he decide to try to bring it under some other crime, and hit on the law about “obscene” online publications? And does this show excessive concern about trying to protect those close to the government?