Kenyan court throws out criminal libel law

Nairobi. A Kenyan court declared unconstitutional a section of the Penal Code that criminalised some aspects of libel and defamation, terming it an affront to freedom of expression as guaranteed by the Constitution.

High Court Judge John Mativo found that Section 194 of the Penal Code was archaic as it prescribed heavy criminal sanctions for the civil offences of libel and defamation, while suppressing freedom of expression.

Under 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 misdemeanour carried with it a maximum jail term of two years for anyone found guilty of criminal libel or defamation.

Justice Mativo ruled on February 6, this year, that anyone offended by another individual’s words or gestures is free to seek justice by way of damages in the civil court.

The judge’s decision offers some comfort for journalists and bloggers who have in the past been arrested over stories deemed to be offensive, especially to powerful individuals in government.

“The chilling effect of criminalising defamation is further exacerbated by the maximum punishment of two years imprisonment imposable for any contravention of Section 194 of the Penal Code. This penalty in my view is clearly excessive and disproportionate for the purpose of suppressing objectionable statements,” the court ruled, adding that there exists an appropriate and satisfactory alternative civil remedy to combat mischief of defamation. “Considering the offence criminal defamation and the drastic punishment prescribed for it and applying tests discussed earlier. (NMG)