Court rules out Penal Code on criminal defamation unconstitutional

The High Court has declared Section 194 of the Penal Code as set out in the Constitution as null and void.

The court ruled that criminalizing defamation is unjustifiable on grounds that it infringes on freedom of speech.

“Any continued enforcement under this section will be unconstitutional,” the court ruled.

The court further ruled that the punishment for the said criminal offence is excessive and not justifiable.

According to Section 194 of the Penal Code, any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel.

The petition arose from a case in which Jacqueline Okuta and Jackson Njeru were sued by city lawyer for defamation.

The lawyer sought refuge from this section after Justice Mumbi Ngugi declared Section 29 of the Kenya Information and Communications Act (KICA) unconstitutional last year.

He had sued them using Section 29, accusing them of misusing telecommunications device and causing anxiety to him for publishing posts on Facebook comments that he felt disparaged his character.

The petitioners challenged the constitutionality of the section, arguing that the section sets limitations to freedom of expression not provided for in the Constitution.

“I, therefore, find and hold that the petitioners have succeeded in demonstrating that the offence of criminal defamation is not reasonable justifiable in a democratic society, hence criminal sanctions on speech ought to be reserved for the most serious cases particularized under Article 33 (2) (a) -(d) of the constitution aim at protecting public interest,” ruled Justice Mativo.