Court declares law criminalizing publishing of obscene information unconstitutional

The High Court has declared section 84 (d) of the Kenya Information Communication Act, which criminalizes publishing of obscene information in electronic form, as unconstitutional.

Justice Wilfrida Okwani on Wednesday ruled that the law is vague, adding that the enforcement of the same is unconstitutional and a violation of rights.

The judge noted that circulation of ideas should not be prohibited, adding that it must be appreciated that it is only through criticism that leaders understand that their actions are inappropriate.

“I find that section 84(d) violates the constitution and is invalid,” the court declared, adding that the new 2010 Constitution gave the people of Kenya freedom of expression.

The section stipulates: “Any person who publishes or transmits or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest and its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied therein, shall on conviction be liable to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years, or both.”

The decision of the judge was made in a case filed by blogger Cyprian Nyakundi who had challenged the Act after he was charged before a Kiambu court for posting on social media derogatory remarks against Kirinyaga Governor Anne Waiguru, Nairobi’s Mike Sonko and Kenya Power Managing Director Ken Tarus.

In Sonko’s case, the blogger was charged that on April 1, 2018, at unknown places, he wrote on his Facebook and Twitter accounts, obscene material about the governor that could deprave and corrupt the public against him.

According to the judge, section 84(d) of Kenya Information Communication  provides for an offence in such broad terms that the accused cannot answer.

“The law does not explain who and how will determine who will be influenced by the matter”Judge said.

Nyakundi moved to the high court to challenge the charges under the said penal code saying that they are unconstitutional and infringe on his fundamental rights.

It was his argument that the section cannot stand against the Constitution, which expressly protects freedom of expression.

The Act was introduced in 2009 by the government to control information that may lead to incitement.