NAIROBI, Kenya, Apr 19 – Justice Mumbi Ngugi on Tuesday declared Section 29 of the Kenya Information and Communication Act, Cap 411A unconstitutional on the grounds that it is vague.
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 prosecution of citizens.
“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,” she adjudged.
She also concurred with the petitioner, Geoffrey Andare, that good law did not leave too much to the discretion of the trial court in concurrence with the court’s finding in Aids Law Project vs Attorney General and 3 Others – Petition No. 97 of 2010.
“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.
She also declared Section 29 of the Kenya Information and Communication Act unconstitutional on the grounds that it offends the Constitution by limiting the right to freedom of expression outside the parameters set out therein.
“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,” Ngugi stated.
Article 33(2) of the Constitution stipulates that the right to freedom of expression does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred.
Ngugi said her decision to declare Section 29 of the Communication Act unconstitutional was also 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, as Section 29 states, “A person who by means of a licensed telecommunication system sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person.”