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“…It is only those provisions which disclose a danger to life and limb or imminent danger to the Bill of Rights at that very moment that the Court may be justified in suspending by way of conservatory orders. (….) Clause 12 of the Act introduces a Clause which limits the freedom of expression and freedom of the media and imposes a hefty fine of Kshs 5,000,000.00 for the offenders or 3 years in prison or both. If implemented, there is imminent danger of the offenders losing their liberty. (….) In the result I grant conservatory orders suspending the following Clauses in The Security Laws (Amendment) Act, No 19 of 2014 together with the amendments to the respective Statutes pending the hearing and determination of these petitions: (1) Clause 12 which inserted section 66A to the Penal Code.” – Ruling by Justice G.V. Odunga in Petition Nos 628 & 630 of 2014.

The recent High Court ruling in the case of Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & another [2015] eKLR has received nation-wide attention. In this case, the Coalition for Reform and Democracy (CORD) a coalition of political parties rushed to the High Court as a matter of urgency to challenge the constitutionality of the Security Laws (Amendment) Act, No. 19 of 2014 assented to by President Kenyatta (pictured above) on December 19, 2014. The court in its ruling declined to suspend the coming into force/implementation/operation of the entire Security Law (Amendment) Act, 2014 but granted conservatory orders suspending several clauses in Clause 12. A copy of the ruling and the Act in question are available here and here respectively.

Clause 12 of the Act reads as follows:

Insertion of new section 66A in Cap. 63.

The Penal Code is amended by inserting the following new section immediately after section 66─

66A. A person who publishes or causes to be published or distributed obscene, gory or offensive material which is likely to cause fear and alarm to the general public or disturb public peace is guilty of a felony and is liable, upon conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding three years or both, or, where the offence is committed by a media enterprise, to a fine not exceeding five million shillings.

The primary target of this amendment is no doubt the fourth estate, namely journalists and media houses disseminating information through print, broadcast (TV, radio, online) and other media. However this blogger argues that this amendment also endangers the rights of all Kenyans who use social media to express opinions, beliefs or views that are political in nature. In a previous blogpost here, we highlighted two cases of social media users being arrested and charged with offences under the Penal Code. This amendment appears to create an offence aimed at curtailing freedom of media and freedom of expression which are fundamental rights enshrined in the Bill of Rights of the Constitution.

Generally speaking, the State has a political interest in controlling the activities of the press within its jurisdiction. The rationale for having laws that curtail press freedom is the protection of several categories of interests, namely the interests of the state (especially its security), the interests of the society (especially public health and moral concerns), the interests of justice and the interests of the individual (especially his or her privacy).

Prior to the contested insertion of section 66A, the Penal Code has historically been an important legislation to control the publication of material that are deemed to be detrimental to the interests of the state, particularly on the grounds of national security. One such provision was section 56 on seditious intention and publication. The section pegged the felony of sedition on seditious intention, which section 56 defined as an intention to, inter alia, “rouse discontent or disaffection amongst the inhabitants of Kenya”. The section went on to explain that a seditious publication is a public publication “containing any word, sign or visible presentation expressive of a seditious intention”.
It is widely accepted that section 56 was subsequently repealed as it was deemed repugnant to the freedom of expression and freedom of press.